October 7, 2014

You remember all the fuss about Hobby Lobby, last summer's case about the Religious Freedom Restoration Act and the Obamacare requirement that employers provide health insurance coverage that includes birth control. The Religious Freedom Restoration Act doesn't apply to the states — not because Congress didn't try to impose it on the states, but because Congress only has the powers enumerated in the Constitution — really! — and the Supreme Court actually said that Congress didn't have an enumerated power for that. But then Congress passed the Religious Land Use and Institutionalized Persons Act, using its spending power to impose the same obligation to accommodate the religion of prisoners on any state accepts federal money for its prisons.

Under RLUIPA, if the no-beards rule puts a substantial burden on Holt's exercise of religion, the state must show that it's the least restrictive means for serving a compelling interest. (An added problem here is that Arkansas also allows quarter-inch long beards for prisoners with a medical need to avoid shaving. Holt wants a half-inch beard.)

The assertion of compelling interest is based on, first, the idea that a prisoner might — and I confess to giggling while typing this — hide things in his beard...

... and second, the idea that if a bearded prisoner ever escaped, he could easily, by shaving, dramatically change the way he looks.

Is it obvious that Holt should win under this standard? What can you hide in a half-inch beard? As for escaping, don't let him escape! But, on the other hand, the Court might be especially deferential toward the judgment of the prison officials. Back in 2005, in Cutter v. Wilkinson, when a unanimous Supreme Court said that RLUIPA didn't violate the Establishment Clause, there was some talk about deference:

We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a "compelling governmental interest" standard, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U. S. 306, 327 (2003).

Grutter v. Bollinger is the affirmative action case that accepted classroom diversity as a compelling governmental interest. You see the point: Compelling is maybe not really all that compelling when we've got government authorities who need to exercise subtly context-based judgment.

Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103–111, p. 10 (1993)).

So RLUIPA applied to the state prisons should perhaps work quite differently from the Religious Freedom Restoration Act applied to the federal government. Deferring to the HHS's idea of what is compelling in the area of health insurance coverage is different from deferring to prison authorities about what's compelling in the area of prison security. The state prison authorities, the Court suggested in Cutter are more like those law school admissions committees in Grutter, more worthy of deference.

I guess my problem with the state's reasoning here is that the beard prohibitions could also apply to hair on the prisoners' heads. Do they have a similar requirement that their heads remain shaved down to a quarter inch? If not, then I don't see why the beard rule passes muster.

They are 2 different things, linked together by the fact that after RFRA failed to work against the states, Congress figured out a way — albeit 2 different ways — to exercise federal authority to force the states to make religious accommodations.

Ah yes, it's just like the old saying, "Give the Muslim a quarter-inch, he'll take you a mile..."

There's a chance that others - including our host - may reprimand me for bringing up Islam in a thread that really isn't about it... except it really is. Just like A&F girl, the goal here is to set one more precedent of western law and custom being subservient to the wishes of the Muslim and Islam.

And yes, I know that that's not where we may be coming from... but you can be certain that that's how it will be interpreted by interested parties.

It is especially foolish to have the rule, fight for the rule and then back down. That makes us not only look stupid, it makes us look stupid and cowardly. The infidel said he had a law, and yet when we gently touched it, his law gave way to ours. Tell me, how many other laws do you suspect the infidel holds that will fold against and equally meager use of force? And when he finally reaches the point where he says, 'here, but no further'... will enough of his law be left to make a difference?

This is especially important in our prison systems - which is an open secret is effectively an Islam recruitment hotspot. If a bunch of young men see that one of their number is given special privileges, and that "Islam" is the magic word to attaining them - expect to see a burst in recruitment.

Tolerance to the point of national submission and destruction is no virtue; Extremism in defense of one's own people is no vice.

the idea that if a bearded prisoner ever escaped, he could easily, by shaving, dramatically change the way he looks.

There have been several prisoners on work details who have escaped the past few months in Arkansas. One of them, a timothy buffington, escaped in June and was on the run - which I guess means he hid in the forest and ate squirrels - until this past month. They put out several highly amusing ideas of what he might look like with different hair and facial hair while he was on the run. So this reasoning seems silly.

"According to Arkansas' brief, Holt describes himself as a Yemeni-trained terrorist. In 2005, he was convicted of threatening President Bush's daughters. He is currently serving a life term for breaking into the home of his ex-girlfriend and stabbing her in the neck and chest. The state says that he has continually threatened jihad against various public officials and was found holding a knife against a fellow inmate's throat after a religious dispute."

That should be leveraged by the state to attract judicial deference.

How much can be hidden in a beard? Do you really want to test that out with this throat-oriented guy?

Does this mean prisons are handing out razor blades to Muslim inmates? Beards are disguises, so guards would want inmates shaven. But giving head hacking Jihadists razor blades seems to be the bigger problem.

No doubt I have spent too much time in high-powered academic institutions, but when it comes to getting out of laws that other people have to obey, I don't think the people who run them are worthy of any deference.

"I guess my problem with the state's reasoning here is that the beard prohibitions could also apply to hair on the prisoners' heads. Do they have a similar requirement that their heads remain shaved down to a quarter inch? If not, then I don't see why the beard rule passes muster."

Yeah, that would be a way of undercutting the claim of compellingness. They do allow the medical exception for beards, so that works the same way.

By the way, there are also RLUIPA cases based on hair. Some religious believers require uncut hair (for example Sikhs).

"I see photos of quite devout clean-shaven Muslims, so I suspect growing a beard is not really a religious requirement commanded by the Prophet, but just something that someone thought up later."

Come to think of it, every Muslim guy I know is completely clean shaven--and this when the trend for young men now is for more and more beards! Though to be fair, the Muslims I know don't seem to be that devout.

I'm guessing it's more a cultural than a religious thing, or maybe it's limited to some particular sect.

This seems like a no brainer to me. If wearing a beard is a part of the particular brand of Islam he practices, and the state can't come up with a compelling reason against it (sorry, but the hiding things in a beard thing is pretty lame), then he should be able to wear a beard. My personal opinion of the fellow is that he's a horrible human being, but even horrible human beings have rights under the law.

Muslims are supposed to have a full beard and a "neatly trimmed" mustache to better "emulate" Mohammed's appearance. It's not a full requirement, but it is a highly suggested one. Just like the idea that they have to pray in a group on Friday instead of alone (the next step in "accommodation" , I will bet.

I wonder when he will claim that the prison is violating his rights by allowing other Prisoners to drink and eat in front of him during Ramadan. It never ends if you give an inch.

Half inch? Doesn't seem like a problem. If that is all it takes to satisfy the religious need, then why not do it, unless one can cite a compelling reason to consider such a length of beard as riskier than a quarter inch.

FWIW, I'm a strawberry blond, and like many strawberry blonds, the hair on top of my head is thin, soft and fine. However, my beard is very thick, kinky, and variegated in color. If I grew my beard to a half inch or more, I have no doubt that I could hide a small awl or even a short garrote in it, while I would have no hope of doing that with the hair on top of my head.

Just because ideas for things to hide in one's hair don't immediately leap to a civilian's mind, we should not presume that any number of astonishingly creative ideas come to the minds of individuals and get shared, in a radically different environment, like prison, where there is a lot more time and necessity to think about such things.

Spend some time with a corrections officer. Some of the innovations devised by prisoners can be very impressive. And chilling.

I don't mean to be melodramatic here, Prof. Althouse, but as a lawyer who in earlier days had frequent occasion to visit pro bono clients in the Texas or federal prisons, I learned not to giggle about things like convicts hiding things in their beards. For other inmates, guards, and even visitors put at risk thereby, that extra facial hair (beyond the 1/4" that Arkansas permits) can be the difference, quite literally, between a prisoner who's relatively safe and one who's concealing a deadly weapon (e.g., a toothbrush-shiv that can kill you in a heartbeat).

Facial hair that's long enough to be immediately recognizable as a beard is a hazard. And I'm not at all convinced that the Constitution requires the SCOTUS micromanage details like the difference between 1/4" and 1/2" of beard. Since I believe Arkansas could constitutionally require a daily clean shave, I have no problem with its current regulation, and I think this actually should be an easy case for the Court.

lgv wrote (): "Half inch? Doesn't seem like a problem. If that is all it takes to satisfy the religious need, then why not do it, unless one can cite a compelling reason to consider such a length of beard as riskier than a quarter inch?"

That logic would end up doing away with prisons. It's a dash down the slipperiest and least negotiable, least recoverable icy slopes.

That logic puts peoples' lives at risk whenever some prison barber is a week late in administering a trim. You really think the prisoner's additional quarter inch of beard is worth regularly risking the lives of all his fellow inmates, the guards, and visitors? If so, we profoundly disagree in the way we value human life.

It seems pretty clear that the prisoner should win. Most states allow beards in prison with no negative effects, which undermines the claim that it is necessary to restrict the prisoner's religious practices.

I do not think the 1st Amendment applies to prisoners serving time for felony convictions, so the statute passed by Congress would just be an attempt to interfere with the management of state prison systems.

Extrapolation to absurdity. Couldn't the slippery slope go the other way? Next thing you know we will be removing their noses so they can't hide anything there. I don't think so.

You really think the prisoner's additional quarter inch of beard is worth regularly risking the lives of all his fellow inmates, the guards, and visitors?

Not at all, but other than, "You'd be amazed at what prisoners can hide" type statements, I would like to hear about examples of things hidden in 1/2 inch beards. What it has been demonstrated that it risking lives to allow a .5" beard, then that would indeed trump religious accommodation.

It would seem like there would be all sorts of examples of the dangers and risks from allowing beards from all the other prisons that allow them.

Fine, make the limit .25" for everyone, not just skin conditions. If guards and prisoners are truly at risk at anything past .5", it would seem they would make sure no one was late getting their weekly trim.

It seems to me that the solution would be to amend the Religious Land Use and Institutionalized Persons Act to remove any statutory rights or causes of action that it grants to institutionalized persons. Problem solved.

and the Supreme Court actually said that Congress didn't have an enumerated power for that. But then Congress passed the Religious Land Use and Institutionalized Persons Act, using its spending power to impose the same obligation to accommodate the religion of prisoners on any state accepts federal money for its prisons."

Besides the other sensible observations by other commenters on prisoners already having their civil rights diminished by virtue of their conviction and incarceration and that the state does have an interest for health and safety reasons to limit beards the professor by focusing on Hobby Lobby forgets National Federation of Independent Business v. Sebelius. Yes the infamous decision that found that ObamaCare is valid as a tax on individuals but also found that the Federal Government cannot coerce the States by threatening to withhold funding.

Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103–111, p. 10 (1993)).

The comments you’re quoting appear to be from 1993 – the Religious Land Use and Institutionalized Persons Act was passed by Congress in 2000. Moreover the courts didn’t find the previous law (the Religious Freedom Restoration Act) to be inapplicable to the States until 1997. So these comments would have been made seven years before the law had been passed by Congress and four years before anyone from Congress would have thought that they’d need to pass new law since the previous one hadn’t yet been struck down by the courts.